ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-5040
DATE: 2012-12-31
B E T W E E N:
Tracy Lorene Compton,
Cheryl Siran , for the Applicant
Applicant
- and -
Jeffrey McLean Compton,
Tyler Johnson , for the Respondent
Respondent
HEARD: October 23 and 24 , 2012, at Kenora, Ontario
Platana J.
Reasons For Judgment
[ 1 ] At the commencement of this trial, counsel advised that all matters initially claimed by the Applicant had been settled except for the issue of spousal support being claimed by the Respondent. Accordingly, issues of custody, access, and child support have been resolved. The sole issue dealt with by me was the Respondent’s request for spousal support.
[ 2 ] Exhibit 1, filed at the commencement, is an Agreed Statement of Facts which I reproduce in full:
The parties were married on August 24, 1996. The parties separated December 28, 2009.
They are the biological parents of Charlie Christine Compton, born October 26, 2004, and Seth Donald Leonard Compton, born October 26, 2006. The parties had a third child, Tucker Andrew Compton, born August 28, 2003, who is deceased. The two children have remained in the primary care and control of the Applicant mother, Tracy Lindstrom, since the separation date of December 28, 2009.
The Respondent father was charged with assaulting the Applicant at separation. The charge was stayed in favour of a peace bond that was in effect from February 2010 until December 2010.
The Respondent’s access from December 2009 until November 18, 2011, was one visit each week from Friday at 5:00 pm until Saturday at 5:00 pm. The mother agreed to increase the access November 18, 2011, to every second weekend from Friday at 5:00 pm, until Sunday at 5:00 pm. Commencing January 18, 2012, the mother also agreed to one overnight per week, from Wednesday at 5:00 pm until Thursday morning before school when the children are returned to the mother.
The Respondent has two weeks of summer holidays each year. The Respondent has not exercised two weeks of summer holidays since separation.
The Applicant arranges all appointments/meetings including school, medical, dental, optical and extra-curricular activities.
The Respondent did not pay child support to the Applicant from December 28, 2009 to November 2011. In December 2011, the Respondent commenced paying Guideline support for two children in the amount of $641.00 per month.
By order dated October 11, 2011, by the Honourable Mr. Justice E. W. Stach, the parties were divorced.
By order dated November 21, 2011, by the Honourable Mr. Justice J.S. Fregeau, the parties resolved their equalization of net family property on a final basis. The equalization resulted in the Applicant providing a payment of $12,779.07 to the Respondent. The mother was able to retain the home at 119 South Park Drive, where she and the children still reside.
The following is a breakdown of the declared incomes of the parties since 1997:
Year Tracy Lindstrom Jeffrey Lindstrom
1997 $18,800.00 $25,338.00
1998 $21,922.00 $33,951.00
2000 $41,598.00 $34,237.00
2001 $45,943.00 $36,127.00
2002 $49,329.00 $40,722.00
2003 $46,658.00 $42,515.00
2004 $57,773.00 $39,793.00
2005 $44,588.00 $36,704.00
2006 $68,097.00 $37,108.00
2007 $59,669.00 $42,345.00
2008 $84,508.00 $42,822.00
2009 $101,480.00 $43,572.00
Total Income: $640,365.00 $455,234.00
Averaged: $53,363.00 $37,936.00
Respondent’s Evidence
[ 3 ] Both parties testified. Mr. Compton is 45 years of age and currently works as a sterilizing technician at the hospital in Kenora. His background indicates that after high school he spent one year at the University of Manitoba and then obtained his commercial pilot’s licence in 1989. He flew full time as a commercial pilot from 1990 to 1993, then part time from 1994 to 2003. His evidence is that his goal was always to become an airline pilot. He worked at other jobs in the off-season from his flying. His evidence is that she supported him in his career as a pilot over the years.
[ 4 ] In 2003, he got a full time job at the hospital. He states that he and the Applicant decided to stay in Kenora so that she could further her career as a teacher. He stated that he was not happy to give up his career for hers. He currently works 75 hours every two weeks and he states he is at the top of his employment scale and does not anticipate any higher income. During their relationship he also worked part time at a golf course until one year ago. Monies earned at the golf course were his exclusively.
[ 5 ] His evidence is that after their children were born the parties originally had what he described as a normal relationship. All monies went into a joint bank account. The Applicant was responsible for all of the financial aspects and he simply took money out of the account as needed. His evidence is that at the time, they divided the household duties and child care evenly. He took care of the children when she was taking courses to become a vice-principal.
[ 6 ] When the parties separated he lived in a basement at his sister’s residence. He currently lives in an apartment for which he pays $700.00 per month rent. His evidence is that his standard of living has been greatly diminished from the period of time when the parties were together.
[ 7 ] The incomes of the parties up until 2009 are evidenced in the Agreed Statement of Facts. The Respondent testified that in 2010 he had gross income of $45,972.00 and expenses of $54,013.00. In 2011, he claims gross income of $42,668.00 and expenses of $44,321.00. He further indicated that he has used the equalization payment which he received of approximately $12,000.00 in order to pay outstanding bills.
[ 8 ] Some evidence was given with respect to his purchase of a truck. His evidence is that the Applicant did not object to him purchasing the truck, although she had no initial input into the purchase. He further testified that the issue of a big screen TV was in fact a joint family decision and not his alone. He testified that she never indicated any objection to him purchasing things, but he did acknowledge that they were heavily in debt.
[ 9 ] In cross-examination, he acknowledged that after separation, he has taken a golf trip to Victoria with friends; spent time on a houseboat vacation (which he says was paid for by his girlfriend); and a vacation trip to Toronto with another girlfriend. He agrees that he tried to have too high a standard of living when the parties were together because he had been accustomed to that with his parents.
[ 10 ] He acknowledged that the family was heavily in debt when the parties separated. They lived paycheque to paycheque and had minimal savings. On separation, the Applicant took responsibility for all the debt.
[ 11 ] He is currently in a relationship. He testified that he stays at his girlfriend’s residence approximately twice each week and while there he pays for his own food, and brings his own groceries.
Applicant’s Evidence
[ 12 ] Tracy Lindstrom is currently age 41. Her testimony is that she had obtained a teaching position prior to the marriage and in November of 1998 got a permanent job as a teacher. Her evidence is that the Respondent was then engaged in his flying career in the summer and that he worked at other jobs in the winter. She stated that he always worked year round.
[ 13 ] In October 2004, the parties were in the process of building a home. Her evidence is that following the unfortunate birth of a first child she wanted to continue living in her grandfather’s house, however, the Respondent wanted to move.
[ 14 ] Her evidence is that he stopped flying because of the heavy work of loading and unloading aircraft, and long hours involved. She indicated also that he stopped because the owner of the company for which he was then flying was terminally ill and the Respondent was concerned about his future with that company. He had good job contacts at the hospital where he had been working casually, and it was for that reason that he quit flying and took the full time job at the hospital.
[ 15 ] With respect to his career aspirations, she testified that she does not recall any talk about him ever wanting to apply for a job with WestJet Airlines. He always said that he loved bush flying and that he did not like instrument (IFR) and scheduled flying. In his evidence, I note that he indicates that he let his instrument rating lapse. In 2001, there was some discussion about them moving to the Maldives for a flying job, but that never came to pass.
[ 16 ] The Applicant also gave evidence that the parties remained in Kenora because she had a job there and that there was never any discussion between the parties of putting her career ahead of his.
[ 17 ] Her evidence is that during the marriage she was the primary caregiver. In 2008, she became a vice-principal which required her to spend longer hours working and often going back to school in the evenings. She stated that she did not do so until such time as the children were in bed in the evenings, and did not do so if that affected any plans he had. She is currently in charge of curriculum with her school board and is not specifically placed at a school.
[ 18 ] She looked after all the finances. She testified that at one time he decided that he wanted to replace a truck. She was aware of their financial situation and she wanted him to purchase a small vehicle in order to get past what she described as a financial crunch at that time. Her evidence is that he stated that he wanted to a have a new vehicle. He then travelled to eastern Ontario and bought a truck on his own. He then contacted her in order that she could sign the appropriate papers to effect a transfer. She was concerned at that time about their financial situation to the extent of possible bankruptcy, but stated that she felt compelled to sign the papers as he was already in eastern Ontario in order to purchase the truck.
[ 19 ] She further testified that on another occasion, the Respondent bought a large screen TV. She stated that she was not aware of and did not agree with such purchase. She described his attitude with respect to spending as “he got want he wanted”. Her evidence is that the parties’ circumstances were always “feast or famine”.
[ 20 ] She has not had any vacations since separation.
[ 21 ] On separation she borrowed the equalization payment to be paid to him from her mother. She testified that she decided to keep the house as an aspect of stability for the children. She testified further that it was not cost effective for her to change residences.
[ 22 ] Exhibit 4 shows that her current income is $9,095.00 per month and expenses are $11,028.68 per month. She describes the bulk of this as being expenses for the children and testifies that she lives pay cheque to pay cheque. She currently owes $84,025.11 of which $65,000.00 is for consolidating the debts which the parties incurred pre-separation. In addition, although she is not legally responsible for a line of credit which is in her mother’s name, she states that in reality it is her loan which she is required to pay.
[ 23 ] Her evidence is that she believes he continues working at the hospital job because he likes working with people, and has a pension plan and benefits program at the hospital.
[ 24 ] In cross-examination she states that he had no problem when she decided to go back to school to obtain her principal’s papers. She indicated that up to 2006 both parties had fairly similar incomes and then she began to earn more. She states that when she began studying and with her work as a vice-principal she did indeed begin to work evenings while he looked after the children but stated that she would have changed that if in fact he had not been available to do so. She states that when she did return to work in the evenings she only did so after the children were in bed.
[ 25 ] She acknowledged that her expenses have increased significantly since June of 2011 but stated that is because she rolled their existing debts into an increased credit line and furthermore had to add $70,000.00 to her home mortgage in order to cover the pre-separation debts. She acknowledges that she has tried to maintain a pre-separation standard of living, but says in her evidence that he in fact is better off because he lived rent free and paid no child support for a period of two years following separation.
The Financial Statements
[ 26 ] The Respondent reports his monthly finances as follows:
His monthly deficit (Financial Statement September 20, 2012)
income $3,516.67
expenses $3,693.47
Deficit $176.80
- net assets $27,999.97 *(includes $10,000 vehicle purchase)
Debts $1,000.00
- No reference to
equalization $12,779.08 $27,999.97
Net worth $46,779.05.
[ 27 ] The Applicant reports her monthly finances as follows:
(Financial Statement September 25, 2012)
income $9,095.00
expenses $11,028.68
Deficit $1,933.68
- net assets $545,230.36
Debts $527,339.48
Net worth $17,890.88.
General Legal Principles
[ 28 ] Both counsel relied on the legal principles to be applied as being subsections 15.2(4) and (6) of the Divorce Act which enumerates the factors and objectives of spousal support:
Factors
(4) in making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:
(a) the length of time the spouses cohabitated;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Respondent’s Submissions
[ 29 ] Counsel submits that the leading case on spousal support is the Supreme Court of Canada’s decision in Moge v. Moge , 1992 25 (SCC) , [1992] 3 S.C.R. 813 , where the Court made clear that nothing in the Divorce Act suggests that any of the objectives has greater weight or importance than any other objective. The Court also made clear that “marriage per se does not automatically entitle a spouse to support …”.
[ 30 ] In Bracklow v. Bracklow , 1999 715 (SCC) , [1999] 1 S.C.R. 420 , the court discussed three kinds of support: (a) compensatory; (b) non-compensatory and (c) contractual support. Counsel acknowledges that there is no evidence of a contractual support relationship in this case and it is therefore inapplicable.
[ 31 ] Counsel’s essential position is that in cases where entitlement is at issue, the Court should be guided by the objectives as interpreted in Moge , Bracklow and Frances.
[ 32 ] The Respondent claims entitlement both on a compensatory and a non-compensatory basis in accordance with the Spousal Support Advisory Guidelines . Counsel relies upon the fact that this was a 15 year marriage and, except for the first two years, her income has been higher. He argues that he stayed at home to care for the children while she was advancing her career and he was required to give up his flying career to advance hers’.
[ 33 ] He argues that there have been no changes in the standard of living on behalf of the Applicant and that she currently earns 2 ½ times his income. He argues that he has a need for spousal support in order to get re-established. He further relies upon his evidence that he now has the children over half the time as indicated in the Agreed Statement of Facts.
[ 34 ] Mr. Johnson, counsel for the Respondent, argues that compensatory support should be awarded because the father has been economically disadvantaged by sacrificing his earning capacity in order that the mother could further her career. He argues that the father took on a stable and routine job at the hospital in order to look after the children which permitted the mother to work evenings and increase her earning potential. He references the decision in Shaw v. Shaw , 2003 64335 (ON SC) , [2002] O.J. No. 2782 , where the court determined that it was not essential that the potential payee was economically disadvantaged by the role played in the relationship and the fact of an economic advantage to the payor gave rise to an entitlement to spousal support.
[ 35 ] Counsel further argues that support should be awarded on a non-compensatory basis as the Respondent’s standard of living is now much less because he has lost the benefit of the parties’ combined income. Counsel argues that the Respondent’s expenses are much less than those of the Applicant and that her debt load is largely due to the increase in the mortgage.
[ 36 ] He submits that this was a long term marriage where the Applicant always earned more than the Respondent and that was a position which the parties accepted. His position is that the parties were content with the roles each was playing and that she never discussed with him his possibility of earning higher income.
[ 37 ] With respect to the argument that the parties lived beyond their means, he acknowledges that to be the case but makes the argument that it was the Applicant who was in charge of the finances in the family, and I infer from that that the argument is that any financial crisis that the parties were in was due to the Applicant.
[ 38 ] The argument is made that spousal support would assist the Respondent to become self-sufficient, and furthermore, will make it much easier for him with respect to his custody and access to the children.
[ 39 ] Mr. Johnson argues that the SSAGs should be used. He submits that on the basis of a long term relationship the Applicant currently has means and the Respondent has demonstrated need. Counsel suggests support of $900.00 per month for an indefinite basis with a possible review in 10 years.
Applicant’s Submissions
[ 40 ] Ms. Siran, counsel for the Applicant, argues that the evidence does not establish that a threshold for entitlement has been established for either compensatory or non-compensatory support. In the event that that position is not accepted, counsel argues that I should not follow the SSAGs and there should be a period of support for only short duration. That position is taken based on counsel’s argument that for much of the marriage the parties had similar income. The Applicant was in fact the primary caregiver and there is no evidence that the Respondent gave up any earning capacity or any advancement in his own career in order to permit her to advance in hers’.
[ 41 ] With respect to the relative financial positions, counsel points out that at the end of this relationship, the parties were heavily in debt. The Applicant has taken on all of the pre-separation debt while the Respondent is now debt free and has a net worth two to three times more than the Applicant.
[ 42 ] Counsel also argues that it should be recognized that the Respondent paid no child support for a period of two years post-separation. Further, given the Applicant’s debt load and her child care costs, she has no ability to pay.
[ 43 ] The Applicant submits that there is no evidence of the Respondent sacrificing anything with respect to his career and that leaving his job as a commercial pilot was his own choice. She relies upon the decision in Cuzzocrea v. Swain , [1995] O.J. No. 2824 , where the judge determined that the evidence did not support a conclusion that the husband had quit any of his jobs solely for the purpose of staying home to look after the children. A determination was made that the husband did not suffer diminished earning capacity because of his non-monetary contributions to the marriage, nor did he confer on his wife an embellished earning capacity. The court further noted at paragraph 21: “the mere fact of this marriage does not entitle the husband to seek a redistribution of income in the form of spousal support”.
[ 44 ] Counsel argues that although the parties’ income is now different, the means and needs are not such as to warrant a redistribution. She points to the evidence which suggests that the parties, and the Respondent in particular, lived beyond his means and he cannot now be awarded a lifestyle which the parties could not afford while they were together. The argument is that he is self-sufficient in terms of employment. Further, counsel argues that the evidence shows that the Applicant has no means to pay support. She has taken the full financial consequences of the debt after the breakdown and that any order of support to him will only exacerbate her ability to care and support for the children.
[ 45 ] In the event that I determine that there is entitlement, counsel argues that with respect to the SSAGs, that any formula should be based upon a custodial payor. She argues that the Agreed Statement of Facts do not disclose anything other than the children are with the father less than 40% of the time and that, therefore, she is still the primary parent.
[ 46 ] In sum, counsel argues that if there is entitlement this should be a case of an exception to the SSAGs because of the fact that she has assumed the debt, and she still is the primary caregiver of the children. Counsel cites also the Ontario Court of Appeal decision in Francis v. Baker (1998), 38 O.R. (3d) 509 (C.A.) , holding that the financial well-being of the custodial parent is inextricable from that of the children in her care. As in almost any incident of separation, the accustomed standard of living of the parties cannot be maintained following marriage breakdown. In that case, primary consideration must be the children. This treatment of child first over spousal is consistent with s. 15.3(1) and (2) of the Divorce Act .
Discussion Analysis
[ 47 ] Entitlement to spousal support must be determined in accordance with s. 15.2(4) and (6) of the Divorce Act and the decisions in Moge and Bracklow. I note that this is a 13 ½ year marriage. Both parties are of relatively similar ages and I have no indication that there are problems with respect to health of either party.
[ 48 ] I further find on the basis of the evidence that I have seen both in the Agreed Statement of Facts and on the evidence given that the Applicant wife should be determined to be the primary caregiver, both past and present. Although I recognize that the issue of custody and access has been settled between the parties, I further find that the children do reside with her in excess of 60% of the time.
[ 49 ] In looking at the overall circumstances, I am satisfied that during the time the parties were married, they were in a financial position of living at the ends of their means, from pay cheque to pay cheque. Both parties seem to acknowledge on their evidence, and I certainly find from the review of the financial information, that they were in fact living beyond their means. As Mr. Compton agreed in his evidence, he attempted to have a lifestyle which he had become accustomed to pre-marriage.
[ 50 ] With respect to their current living situation, she is in the matrimonial home. On initial glance it would appear that her living condition is significantly better than that of the Respondent husband who resides in an apartment. However, that must clearly be balanced off by the fact that on separation she assumed all debts, and in fact, had to increase the mortgage on the property in order to do so.
[ 51 ] He currently lives in an apartment and states that he spends two nights a week with his girlfriend. He testified that when he attends at her residence he brings his own food and groceries. Without commenting any further I would simply note that I found his evidence with respect to his current relationship to be, at the very least, evasive.
[ 52 ] For the Respondent to succeed in his spousal support claim he has to satisfy me that he suffered an economic disadvantage flowing from the marriage. There is no suggestion that he is currently in any different employment or financial situation than he would have been but for the career aspirations of the wife. Simply put, there is no evidence of any diminished earning capacity. He is employed in a job where he has a pension and benefits. Based on the previous finding that I made with respect to their financial circumstances, he cannot be considered to be in any poorer overall financial circumstances than he was while the parties were together.
[ 53 ] Dealing with the objective of economic advantage or disadvantage, I do not find that the husband has suffered any economic hardship arising from the breakdown. I do not find that he gave up his job as a commercial pilot so she could advance in her career. There is no evidence beyond his testimony that he applied to WestJet, or that he ever attempted to advance in his career as a commercial pilot. There was some indication in the evidence that the parties at one time considered a move to the Maldives, which she agreed to, but that move never occurred.
[ 54 ] Likewise, I accept her evidence that although she has advanced in her career, it was not at the expense of his. She spent much of her time on acquiring her additional qualifications in the evenings, at times she stated she would not use for studying if in fact the husband had a conflict with anything that he wished to do.
[ 55 ] With respect to the objective of the apportionment of financial consequences arising from child care, I note that the husband paid no child support for two years following the separation. As noted in Cuzzocrea, while their incomes are significantly different, “the mere fact of this marriage does not entitle the husband to seek a redistribution if income in the form of spousal support”.
[ 56 ] In terms of their current situations I note that in the husband’s Financial Statement, filed September 20, 2012, he reports income as $3,516.67 and expenses of $3,693.47 leaving him with a deficient of $176.80 per month. He reports net assets of $27,999.97 (including a vehicle purchased for $10,000.00 subsequent to separation), debts of $1,000.00, and makes no reference in his Financial Statement to the equalization payment which he received of $12,779.08. Taking into account that aspect it would indicate that his net worth will be somewhere between $27,999.97 and $46,779.05.
[ 57 ] With respect to the Applicant wife’s Financial Statement as at September 25, she reports monthly income of $9,095.00, expenses of $11,0288.68 for a deficit of $1,933.68. She reports net assets of $545,230.36 and debts of $527,339.48, leaving her with a net worth of $17,890.88. In looking at the totality of these circumstances, I am not satisfied that there has been any economic hardship of the husband arising from the breakdown of the marriage. He is for all intents and purposes economically self-sufficient.
[ 58 ] With respect to the issue of means I note that the husband received an equalization payment. He currently has steady income. I acknowledged that he has greater expenses than his income but do note that the Applicant wife is in the same position where her expenses exceed income, primarily due to the debt which she assumed, and to the fact that she has primary care of the children.
[ 59 ] The financial evidence is that for the first several years their incomes were relatively the same. With respect to the issue of economic hardship, as I noted earlier, the father is currently employed, and has received an equalization payment. I do consider that he lived rent free for two years following the separation during which time he paid no child support.
[ 60 ] I find that he must be considered as being economically self-sufficient. As noted previously the objective is not to equalize the income of parties. I further reference the decision of Francis v. Baker , where it was recognized that the financial well being of a custody parent is inextricable from that of the children in that party’s care. As in almost any incidence of separation, the accustomed standard of living of the parties cannot be maintained following marriage breakdown. Primary consideration must be the children.
[ 61 ] I find that the threshold for establishment and entitlement to support has not been met and the Respondent’s claim for spousal support is dismissed.
[ 62 ] If the parties cannot agree on the issue of costs, written submissions may be made. The Applicant wife shall file written submissions within 30 days, and the Respondent husband shall have 15 days to reply. If cost submissions are not forthcoming within that time period, there will be no order as to costs.
_______ ”original signed by”_ ___
Mr. Justice T. A. Platana
Released: December 31, 2012
COURT FILE NO.: FS-11-5040
DATE: 2012-12-31
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Tracy Lorene Compton Applicant - and – Jeffrey McLean Compton Respondent REASONS FOR JUDGMENT Platana J.
Released: December 31, 2012
/mls